Injury Law Blog

Having a Clear Action Plan for your personal injury claim can literally save you thousands of dollars, years of stress, and get you better results. Let’s talk about why, and how to get your personal injury lawyer to make and stick to it.

When Injury Cases Go Wrong

Most people have heard stories of compensation claims that have gone wrong. Lawyers have taken all the money. The case took 5 years to resolve. Things weren’t done when they should have been. The lawyer was never available. The list goes on.

Typically, these complaints can generally be categorised into one of two areas, massive legal bills or a terrible legal service experience - often both because they go hand in hand in some ways, as we will see.

As someone who has worked in the industry for nearly 20 years now, I can say with some confidence that the underlying cause for these horrible experiences ultimately lie in the fact that the personal injury lawyer did not have a clear plan of action.

Lawyers tend to be busy. It is the nature of the industry. Firms tend to overwork lawyers to get the most bang for their buck - there is reason why it is one of the most stressful professions with among the highest rates of depression and alcoholism.

But there can be other factors too. Poor matter scheduling, or just bad luck, means that when one case “blows up” the lawyer’s time, energy and effort are directed to it and often to the detriment of their other cases.

Whatever the cause, or even when the lawyer isn’t busy, when there is no clear plan of action several things happen:

Work is not done in a timely fashion

Work is not done efficiently

The other parties take control of your case

These in turn lead to higher costs, longer delays, and poorer outcomes.

Moreover, if there is a good plan of action this will not happen. You want your personal injury lawyer to work with a clear plan of action.

What Makes A Good Action Plan

Effective personal injury Action Plans are not complicated. They do not need to be book-sized in length, with detailed analysis of all possible eventualities and with contingency plans for each. They are not a manual nor exposition of law.

Effective personal injury Action Plans focus on what you can change, not what you can’t. They should NOT focus on the other party(s) and their case(s) at all. That is a common mistake I see often. Don’t get distracted. Your job is to develop your case. A good Action Plan will focus only on what is needed to move your case forward. That’s it.

Effective personal injury Action Plans are simple and clear. An action plan is not a goal. It is a tool to help us use resources (time, money and effort) effectively on the case, and should be meaningful so everyone clearly knows what is what and why. If a six-year-old can’t understand it, then it probably needs to be reviewed.

Effective personal injury Action Plans are flexible. Like a ship’s navigation chart, the Goal of action plan is to have clear port to steer toward taking into account that conditions may change along the way effecting how you get there.

My 4-Question Action Plans

After nearly 20 years of working on personal injury claims, I have refined my Action Plans down to asking myself a few simple questions:

Where are we going?

What steps do we to take to get there?

What step are we working on now?

When can we move to the next step?

The first two set goals, the latter two create achievable actions. I ask these questions every time I work on the matter, from the very beginning to the very end. I incorporate them into my case management system, and at least the final two in my reporting letters to the clients I serve. In my experience I have found that asking these questions are a powerful and simply way to stay focused and keep the matter moving forward.

1. Where are we going?

For me, there is only ever one of three goals:

Get the case to meaningful settlement negotiations before Court;

Get the case to meaningful settlement negotiations at the Pre-Trial Conference (a court-assisted settlement process);

Get the case to a trial.

These vary from case to case. For some cases, I know that it will be a waste of time to try settle before Court. In those cases, I will set the Pre-Trial Conference as the goal - perhaps with a strategic pre-Court offer made along the way. All cases will at least begin with the second goal if not the first, and the third is there if the matter can’t resolve by agreement.

TO BE CLEAR: I will listen to any offers along the way. If my goal for a case is to head to a Pre-Trial Conference, of course I will still recommend a good offer made before Court. But I have found that things need to change before offers substantially improve and it is better to make the change rather than sit and hope.

2. What Steps do We Need to Take to get there?

This depends on the particular case, though typical steps for District Court personal injury cases (motor vehicle accidents, medical negligence, occupier liability, public liability claims) are something like the following:

Wait for the client to medically stabilise. For personal injury claims, medical evidence is key. If the client is still undergoing treatment, why request the doctor’s records after the first visit when you know the client will be needing 20 visits? You will only have to go back and request them again later - effectively doing the same thing twice or thrice or more.

Get initial primary evidence. This is evidence that will be produced without our involvement, and needed to get effective secondary evidence. They include client instructions and relevant documents like doctors records, hospital notes, photographs, etc. Some can be sought from the beginning while others, as related above, we need to wait for.

Get secondary evidence. This is evidence we “create” for the case and using the initial primary evidence. This is usually medical reports but can also include other expert evidence such as engineering reports, specialist reports and more. Hopefully this can all be created simultaneously in one “round of gathering”, but sometimes we need one piece of evidence before we can get another piece of evidence - so several “rounds” are required.

Prepare Draft Court Documents. Even if you are going to try to resolve the case before Court, drafting these documents will (a.) prepare you for the negotiations, (b.) show the other party you are serious, and (c.) if the negotiations fails enable you to move on toward a Pre-Trial Conference quickly. If you are going straight to Court, it is handy to draft these all in one go because you do not need to re-familiarise yourself with the file and because it helps to comply with the Court’s time lines if the documents are done in draft form.

File Pleadings & Exchange Discovery. This is where the parties formally outline their case and the evidence they are relying on. It is done by

Go to the Pre-Trial Conference. Most matters should resolve here.

Have the Matter Listed. Finalisation of outstanding evidence, Witness Lists Evidence, Counsel and preparation for the listing conference.

Prepare and attend Trial.

Post Trial Wrap Up.

For cases in other Courts (read: Workers Compensation), the process isn’t too different in principle. Perhaps the only exception is Victims of Crime or Criminal Injuries Compensation (CIC) because that is an application and not a dispute. That still involves steps 1 through to 3, but after that is the filing of the application and responding to the Assessors objections, if any.

You may have realised that the timing of the above can change from case to case. Sometimes it is necessary, for example, to start in Court straight away because of statutory time limits or because it is appropriate to get the Court-side moving while the Evidence-side is developed. So, unlike the first question, these steps will change from case to case and may evolve depending upon how things develop.

3. Where are we at?

This is the “action” level and not the goal level. It simply requires looking at which step (from above) we are at and what needs to be done to complete that step. It shouldn’t be something we need to do, that should just be done. It should be something we waiting on to move forward. For example, perhaps it requires chasing a doctor for a report, chasing the defendant for their defence, waiting for the specialist’s views following a surgery, or other such action.

4. When can we move to the next step?

This question is at the action level too, but it has the dual function of reminding us to keep moving forward as well as that everyone is understands how the injury claim is progressing.

When Does YOUR Case Need An Action Plan?

From the beginning. All cases should have an action plan. Your personal injury lawyer may already be working by one - even if it is different from my own.

You will know if one is needed because you will NOT have a good idea about where your matter is at or you will NOT have a good idea about where you are going. If you are not sure about of these two things, you probably want an Action Plan.

How To Get An Action Plan?

Easy. Ask for one. Your personal injury lawyer works for you. It is entirely within your right to instruct your personal injury lawyer to give you one. Ask for a report addressing (perhaps using the four questions method I use) and then have them report to you as the matter progresses as appropriate. Your personal injury is obliged to comply.

My view is that reporting should be done at the end of each step or at appropriate intervals if a step is going to take some time - which is common when we are waiting for treatment to finalise. During those times, I would expect a lawyer should be reporting about once a month on average - though it ultimately is down to your preference and your lawyer.

Whatever the status for you, there is no doubt in my mind that a Clear Action Plan will greatly improve the outcome of your personal injury claim. Good luck!

The recent tragic death from an autonomously driven vehicle raises interesting theoretical questions about the law of negligence for a comparable motor vehicle accident death or injury here in Western Australia.

Who would be at fault if the crash happened here in Western Australia? What is the liability of the driver of the autonomous car? Does Tesla have any culpability?

Circumstances Of the Accident

In Florida on 7 May 2016, Joshua Brown died when his semi-autonomous Autopilot driven Tesla Model S collided with another vehicle. Brown was travelling on a highway with Autopilot engaged when a tractor towing a trailer crossed the highway. The Tesla vehicle hit the trailer side-on, resulting in Brown’s death.

Tesla confirmed the Autopilot system failed “see” the trailer and apply braking. The failure was attributed to unusual circumstances. The trailer side was white and set against a brightly lit sky. The ride-height of the trailer was elevated, with Brown’s car passing under the trailer but the windscreen impacting the underside of the trailer.

It seems there was no evidence of any attempt by Brown, the deceased driver, to retake control just prior to the crash.

Tesla noted that the Autopilot system is initially disabled and that prior to its activation owners must acknowledge the Autopilot system is experimental and requires driver supervision. Further, every time a driver uses the Autopliot system a warning is given instructing drivers to keep both hands on the wheel and be ready to take back control.

This is the first known motor vehicle accident fatality for a car being autonomously driven.

Some Related Accident Facts

According to Wikipedia, at the time of writing this relevant road user fatality statistics include:

The United States have 10.6 deaths per 100,000 people and average 7.1 deaths per 1 billion kilometres

Australia has 5.4 deaths per 100,000 people and average 5.2 deaths per 1 billion kilometres.

According to Tesla’s records, this is the 1st death after about 130 million kilometres of semi-autonomous driving, which is an equivalent rate of about 7.69 per 1 billion kilometres - slightly higher than the kilometre average in that country.

Me, Tesla and Autonomous Driving

Before looking at this case from a Western Australian personal injury perspective, let me first say that I am fan of both Tesla and Autonomous driving systems.

Tesla’s semi-autonomous Autopilot system, and other similar applications being developed by Google and others, are already arguably safer than an average driver in certain circumstances.

Moreover, these systems are still being developed and it is my view that these systems greatly reduce road injuries and accidents into the future.

That bias out of the way, let’s move on.

Who Would be Responsible for the Crash in Western Australia

I am not going to pretend to know motor vehicle law in Florida, USA. Instead, lets look at the accident in the context of Western Australian law - as though it had happened here.

Western Australian motor vehicle accident claims are based in the law of negligence. The law of negligence is well settled in Australia, our road infrastructure is well designed, and our road rules are well developed. As a result, it is usually very simple to determine responsibility for a car crash here in Western Australia.

This case is no different. At least in relation to drivers’ negligence, although I have had to make some factual assumption for want of more information. However, there is the more novel aspect of “product liability” being brought into the mix.

If you want a quick answer about who I think is liable if the accident happened here in Western Australia, then in nutshell:

The tractor driver is the main culprit;

The deceased, Joshua Brown, has some liability too; and

Telsa might be liable too but indirectly through ‘product liability’ rather than traditional ‘road negligence’.

For a little more detail, read on.

The Tractor Driver

Right of way is an important part of road usage. It informs road users on how to behave with others. Lights, lanes, lines and other devices are all deliberately used in combination to create clear rights of way because clear rights of way reduces confusion and, by extension, accidents.

Brown was a highway user when the accident happened. A highway user can generally expect to be able continue on the highway in their lane unimpeded, though still remain alert so as to avoid accidents in the event of unexpected conduct. A highway user has the right of way.

The Tractor driver was crossing the highway and didn’t have right of way over Brown. That an accident occurred, means that the Tractor driver interfered with Brown’s right of way causing an accident.

The Tractor driver was negligent.

Yes. Road users should be attentive, but with mobile phones, maps, conversations, and various other distractions, the Tractor driver is not entitled to assume that oncoming traffic would be attentive. He should have waited to cross when no one was going to be affected by his crossing.

I have assumed:

The Tractor driver intended to cross the highway

The Tractor driver didn’t stop for an unforeseen emergency

The Tractor driver knew the highway traffic was going to be impeded by his vehicle

Brown’s Responsibility

Just because one person is responsible for an accident, doesn’t mean that no one else can be. Multiple people’s negligence can contribute to the same accident. This is called “contributory negligence” and Court’s regularly deal with this issue by apportioning liability (blame) for an accident as a percentage.

Tractors pulling trailers are not known for being quick. Yet the Tractor had enough time to pull out on to the highway past the Tesla. We know this because the Tesla didn’t take evasive action and impacted the trailer which was being pulled behind the tractor.

The assumptions we can draw from this are:

Brown would have had time to react and avoid his death had he been paying proper attention;

Brown was not paying proper attention.

Brown was liable and for failing to take proper care.

Relevantly, Brown’s reliance on Tesla’s Autopilot system has no bearing here. By choosing to use the Autopilot system he is NOT relieved of his responsibility to drive in a safe manner. He has a non-delegable duty to take due care when he is the vehicle’s driver.

Tesla’s Responsibility?

Tesla cannot be responsible for the crash in the typical sense. Brown cannot delegate his duty to drive safely, so under motor vehicle accident law only Brown and the Tractor driver are liable.

However, Tesla may not be off the hook.

Tesla’s Autopilot is a ‘product’. Namely, a semi-autonmous driving functionality requiring the driver supervision. Tesla could be liable in negligence to Brown under “product liability” and so indirectly liable for the accident.

Product liability is also governed by the law of negligence, but supplemented with specific statutory laws too. It is generally more complex to run in practice than typical ‘road negligence’ because more technical investigations and specific expert opinions are usually required.

In essence, however, the issue here would probably come down to:

Did Tesla do enoughto force a driver toremain attentive andbe ready to take control?

Of particular relevance, Tesla had two in-built warnings:

To activate the Autopilot system, the driver must acknowledge Autopilot “is an assist feature that requires [the driver] to keep [their] hands on the steering wheel at all times” and that the driver needs “to maintain control and responsibility for [the] vehicle” while using it; and

Each time Autopilot is engaged, the driver is reminded: “Always keep your hands on the wheel. Be prepared to take over at any time”.

Telling the driver to keep their hands on the wheel and maintain attention would go a long way to discharging any responsibility for the product from Tesla back on to the driver.

But if the Autopilot feature performs consistently well day after day after day, as it seems it has, it is (ironically) reasonable to expect people will become complacent about the warnings which increases the risk of driving without their hands on the wheel and/or without giving the road their full attention.

So, were the warnings enough?

SIDENOTE: There are some specific laws in Western Australia regarding warnings and personal injury claims but it is not clear whether those laws would apply here - or if they should apply here. I have assumed they do NOT apply but I could be wrong - it is untested at this time.

When considering the adequacy of the warnings the Courts would likely look at what other reasonable steps could have been taken to reduce the risk of an accident. What is reasonable is determined by having regard to many factors including the likelihood of the risk (here an accident), the harm posed by the the risk, and the costs of implementing countermeasures.

The Risk of an Accident Happening by Autopilot failing was not remote.

Tesla’s Autopilot is:

experimental

novel

still being improved

Common sense dictates that it should be expected to fail, which it did. Tesla knows this. That is the purpose of the warnings and attempting to keep driver’s vigilant. The risk is not remote.

The seriousness of harm posed by Crash is Significant.

The possible affect of a crash is significant harm. We are not talking paper cuts or pin pricks here. Motor vehicles are heavy, fast and dangerous and the severity of likely harm is high. Here the failure resulted in a death. And it is not a stretch of the imagination to think that in other circumstances more people may have been killed or injured.

Were there Reasonably Available Protective Measures?

This part is a bit more speculative, but in my view Tesla could have done a number of things to protect against the risk.

For example, Tesla could have had sensors built into the steering wheel requiring it to be grasped when using Autopilot. If not properly grasped, the car could issue a loud alarm. This measure would probably be relatively easy to implement, and almost certainly would help ensure drivers keep their hands on the wheel and, in turn, pay better attention. In those conditions a driver is not likely to lose attention and suffer an accident like Brown’s.

And this is where I think Tesla has some exposure. Given the relative immaturity of the technology and the gravity of harm posed by a car crash, a Court could conclude Tesla ought to have implemented wheel sensors or some other further measure which would have protected someone like Brown.

Overall, I think Tesla would probably be found liable to Brown under Product Liability if the accident happened here.

Assumptions:

Brown was not paying attention

Brown had taken his hands off the steering wheel

Brown would have spotted the Truck if forced to keep both hands on the steering wheel

Summing Up

If this crash happened here in Western Australia, my view is that all would hold some liability with the lion’s share of the blame to be given to the Tractor driver - who should have assumed an inattentive driver may be coming when he tried to cross the highway.

Relevantly, semi-autonomous driving systems will not exculpate a driver from responsibility because the decision to use a driving system does not remove the obligation to drive safely. However, that introduces a responsibility on the provider of the autonomous systems to ensure that their systems are implemented in a safe manner, and which may or may not be discharged by warnings alone.

Hopefully this tragic accident will be one of the last where an autonomous driving system failure resulted in death, and that soon such systems will improve road safety world wide. The only people perhaps to lose out from their evolution are insurers and personal injury lawyers!

If you have been injured, it can be difficult to tell which personal injury lawyer won’t overcharge you.

As an expert senior personal injury lawyer, the following is a simple list of my practical tips to help you find a lawyer who is more likely to charge a reasonable sum. These come from many years of experience working on personal injury claims at law firms of all sizes, national and small.

These tips may save you $1,000s of dollars!!

I will provide a short explanation for each tip but if you simply want to read them as a list, or would like to jump to a specific one, you can use this index here:

Use “Free Lawyer Consultation” Offers & Shop Around

If you were paying for consultations, you would not want see as many lawyers as you reasonably can. The total bill would be huge. Most personal injury law firms, however, offer a free consultation service. Use that service.

The benefits of using the free consultation service are several, including:

You get different and varied advice which will better inform you about your personal injury claim;

You get to feel out the personal injury lawyer or firm and can decide whether you think you will work well with them;

You should be able to get a quotation for the likely cost of your case, and which you can compare.

Truly Free Consultation or Charged if you Proceed?

Some firms offer a “Free Consultations” while others offer “Free Consultations (*Fine Print: On condition You Do Not Proceed)”. In other words, the latter firm will charge you if you sign up with them.

You might want to prefer the law firm offering a truly free consultation over the law firm who conditions it with “free-if-I-don’t-proceed firm”.

Not just because you will be paying for the initial consultation, but because structuring the offer like it is free is not really entirely honest (although not dishonest either) and may indicate they are sensitive about their costs - perhaps for good reason.

IMPORTANT: This is not a deal-breaker issue. You should still speak with those law firms because they may be brilliant for you in all other respects.

Talk to the Lawyers on the Phone

You are likely to consider fewer firms if you see lawyers in person. The effort of scheduling appointments, driving in and see them will cause you to run out of puff. In the time it takes you to organise an appointment and attend it, you may be able to speak to 5 different personal injury law firms.

Apart from being much easier to simply call the lawyer, another advantage of calling is that you will be less susceptible to suave lawyers with slick sales pitches or impressive premises. Remember: Your focus is to find a competent and reasonably priced lawyer to run your claim.

Prefer a Senior Lawyer Over a Junior Lawyer

A Senior Lawyer has more than 5 years experience. Although senior lawyers generally charge at a higher rate, they usually more than make up for that by getting the work done more quickly. Moreover, the quality of their work tends to be higher, and which can also lead to better results.

Prefer a Specialist over a Generalist

Many legal jobs do not require particular expertise. Almost any lawyer can do them as well as the next lawyer, and at same or similar cost.

Personal injury compensation litigation is not one of those areas. Experience as a personal injury lawyer, and being set up for personal injury claims, does impact the bottom line.

A firm set up to provide personal injury services and with experienced personal injury lawyers will do a better job, and should result in lower fees.

Consider Small Local Firms, as well as Big Firms

People instinctively trust large law firms more. This is because they know of them. They have usually seen their advertising, branding and press releases, and already aware of their presence. Simply knowing about a firm makes people trust that firm over a firm they do not know. That is why big firms spend big money on branding and often do press releases.

BEWARE: That instinct could cost you.

Specialised small and local law firms, sometimes called Boutique Firms, should definitely be considered. Often they will offer better, cheaper and more personalised services than a big firm.

Avoid Legal Teams

A personal bug bear of mine is the ‘legal team’. And I am not being curmudgeonly here.

A legal team usually includes a Partner or Senior Lawyer, a Junior Lawyer and a Paralegal. There may also be associates and other roles, like an Associate. Each role may charge at different rates.

Many firms proudly announce that they work on matters as a team, and that they can use cheaper labour for those jobs that do not require the experience. That is both right and usually wrong.

It is true that they may use cheaper labour for some tasks, but in my experience a team will cost you MORE.

Why? The involvement of more than one person means more hands ‘touch’ each peace of work leading to more cost units and a greater overall cost. In the team, for example:

The seniour lawyer may instruct a Junior Lawyer to prepare a letter to a doctor (2 Units, 1 Unit for each).

The Junior lawyer then dictates the letter (3 Units).

The Paralegal prints the draft and gets attachments together and gives it to the Junior Lawyer (2 Units).

The Junior Lawyer checks and amends the draft, and gives it to the Senior lawyer to sign (1 Unit).

The Senior Lawyer then checks the letter, signs it and sends it (1 Unit.)

The total here is about 9 units of work at different rates. Whereas one experienced personal injury lawyer working with electronic files (see below tip) may simply type the letter, check it, and send it electronically. Doing the entire task in one go they may be able to do it for a charge of 3 or 4 Units. Even accounting for different rates, that is going to be cheaper.

But that is just one reason I do not like team-based work environments.

Another reason is that teams tend to be less effective generally. For example, information communicated to one person may not reach all relevant people and time can be wasted relaying messages and information.

Prefer a firm where you will have just one lawyer working on your matter.

Two words: Electronic Files

A legal file is where all the documents for are kept for your case. Many law firms still work with a paper file. Others take a hybrid approach, working with partly electronic and partly paper files.

You want a firm that uses entirely electronic files. Much time is wasted dealing with paper, and in the law game time equals money. If you look at the team example above, you can see that being able to attach documents with a click of button saves on costs. Ask the firm how they keep their files - hopefully it is electronically.

Cost Estimates Are Indicators Only

Cost estimates are just that. Estimates. You can not rely on a costs estimate as being accurate in personal injury claims because the lawyer truly cannot say what will be involved with your case.

While estimates are unreliable, they can provide a valuable indicator of the efficiency of the law firm.

For example, if Law Firm A estimates their costs will be $10,000 to get you matter to a Pre-Trial Conference (a sort of Court-enforced settlement conference) and Law Firm B estimates $20,000, you should probably go with Law Firm A - assuming both have estimated a similar level of work is required.

NOTE: Estimates become less valuable indicators when matters are potentially complex and the ‘ranges’ of costs fluctuate more.

So condiser the different costs estimates from each firm, analysing what they have provisioned for, but remember that they are not reliable indicators.

Avoid Above Scale Legal Rates

The Scale is a State Costs schedule used for many different purposes. One of those purposes is decide the rate for work that can be recovered from the another party.

If your lawyer is charging above the Scale rate, you are already behind the 8 ball if you are successful because the recovery rate for applicable work will not cover the rate charged to you by your solicitor.

Most firms will charge out at rates equivalent to the Scale rate, so you should not have difficulty finding firms that do not charge above the Scale rate.

Ironically, the benefit of a cheaper than Scale is not as important. Charging at a rate cheaper than scale just means that the rate for work that is NOT recoverable is less and because that is usually a smaller portion of the overall bill, it is less important. A lower rate is still good though.

Avoid Firm Charging Internal Expenses

Expenses are an inevitable part of personal injury litigation. There are Court fees, medical expert fees, and more. Normally these third-party costs are recoverable if you are successful.

Apart from charging for their time spent doing work, some firms also charge costs for “internal expenses” for things like photocopying, scanning, deliveries and emails. Internal expenses are generally not recoverable and can add up. You should prefer a firm who doesn’t charge these over a firm who does.

Bonus Tip: Avoid Fancy Trappings

Some firms are very impressive. Housed on the top floor of well located city skyscrapers, with marble lined receptions looking out over coveted river, park or sea views. Letter heads embossed on lovely grainy paper, and magazine-like brochure packages. Well heeled lawyers attired in the bespoke suits, sporting soft leather briefcases and alpine-ski tans.

Very nice. But my advice: Run.

Despite the air of success engendered by these trappings, they also point to an opulence funded by costs-driven practice. To practice law well, you just need a working phone, a functional computer and a suit that will pass muster before an old-school Judge.

Yes. Merely having those three simple things does not mean that the lawyer will be good, but the point I am making is that anything else is “surplus to requirements”. Moreover, the excess will usually come at a cost.

I hope those tips prove useful to you. Please feel free to email me feedback, or call me if you have a question about the above or any other matter relating to personal injury law.